This is true, but I think, in general, this is a better place thanks to “activist” judges.
Well, they were results of a rigged voting booth.
Yes… I will tentatively agree that for the most part, “activist” judges have been more benign than malignant in their actions. It’s not surprising; they are motivated by a desire to do good, to make a difference.
But that’s not the point. The mere fact that the first several philosopher-kings we have picked to rule us have been benign is not a good reason for having a system of rule by philosopher-kings. The damage the activist judges do is not so much by their rulings as it is by undermining the notions of self-governance, and legitimizing the potential future actions of a philosopher-king who is NOT benign. When a right-leaning Supreme Court finds that every fetus has a constitutional right to life, on what principled basis do you complain?
Simple. You’ll just have to be our benign philosopher-king and live forever.
I apologize for not getting back sooner. But I got swamped with work and life and then (now) I screwed my back up and can’t sit for very long. I did want to try to answer some of the questions that were pending. I don’t think there is much more to say that hasn’t been said, and I’m tired of rehasihing the same old ground, so I’ll seek to give my brain and back a rest. If there’s a particular thing I’ve missed or is still unclear, I’ll try to get back to you. But maybe not.
First, thank you for your thoughtful post.
As far as the Prop 8 vote, in CA the difference the vote will have as far as rights is rather small. Most of the legal protections are already in place. But even so, it’s weighing two different "good"s. I fell it a “good” that gays have equal rights. I also consider it a “good” to have marriage be defined as a man/woman relationship. I, obviously, view the latter to be more important as far as what is beneficial to society. Additionally, by choosing as I have I limit the effects of the downside of my decision. Either I have to negatively affect society as a whole, or the small subset of gays who insist on marriage.
I understand your attempt here, but I disagree that the word has the emotional weight of marriage. I think, “mother”, and “father” would have been better examples. I think we are a little forgiving with the use of these words so young children aren’t asked to grasp concepts that are beyond them.
Even though I’ve explicitly stated numerous times that I am in favor of gay adoption? And “klan”? :rolleyes:
That’s not true at all. I don’t see gays as second-class citizens. I see them as equals. I’d argue that, ironically, it is you that assume that the difference must necessarily equate to less than equality under the law. Is a man equal to a woman under the law? Yes, yet the words attached point to a very real fundamental difference. Why might not gay relationships be viewed as different, to the degree they are, yet equal under the law. I’ve argued for some legal language such as: “From this point forward ALL rights and privileges enjoyed by a married man and woman, by virtue of their marriage, be extended to a ll gay couples that have formed a union recognized by the state.”
I’ve heard you and others argue that even if this were able to pass that you wouldn’t favor it because it would be too easy strip rights away later, one by one. But if it did pass, and gay relationships turned out to be every bit as wonderful and unspectacular as current marriages, why would anyone attempt to strip away a right willy nilly? Especially if the law had been voted in by the populace?
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I’ve answered it.
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That I’ve not displayed any sexual activity outside the norm. As such, the question would be nonsensical.
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I’d bow out, as their question/accusation would, as I said, be nonsensical.
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I think your forget that I am IN FAVOR of their relationship having legal recognition. I wish them to have all the legal rights married people do. As far as “deviant” sexual practices or preferences, the FACT is that while homosexuality IS natural, it is not the same as heterosexuality. One leads to the the furtherance of the species, the other simply does not and can not. And I would think people would be able to understand that “deviating form the norm” is not a judgmental statement.
Untrue. You are simply mistaken, as that is not and has never been my position. So maybe you should have “bothered” to find it before you banged on the keys.
Your haughty, ivory tower attitude aside, try paying attention then. Your cites that go to prove homosexuality in the ancient world do not prove acceptance of gay marriage. And as I asked before, however great the degree of acceptance within a particular small window of history, why do you think of the fact that it has not made it into the modern world?
I basically agree with that, except to say that I would not go far as to say their is no merit or value in the facts as you relate them. I think we also look outside ourselves to nature, and see how it comports with the two positions. We then look to what would best benefit society.
You know, magellan, it really pisses me off to find a quote such as this in a thread of this length.
I don’t mean this specifically to be aimed at you; I see it far too often, and it always pisses me off.
Look. It’s a long thread. You believe that you have already answered the question. You are better equipped than anyone else in the thread to link to the specific post that contains the answer you have in mind.
Poly was quite respectful in asking his question. I really feel that the respectful response would be to link to the answer you say you have given.
I know that your coding skills are up to the task. I also sense that you have enough integrity to be straightforward in responding to the request, rather than coy, as you come off here.
ETA: If you do choose to respond with a link, I also think it would be polite for you to specify (as in restate) the question you are answering.
I’m very sorry. I misread your assertion that same-sex unions had only been around recently. Until I can find something else that I might have read about this, I’ll admit I was totally in the wrong on this point.
This is exciting! I’ve never been accused of being ‘ivory tower’ before.
No, they don’t prove that there was ancient gay marriage. What they do prove is that, first, there were certainly sanctioned forms of gay relationships and second, that marriage in the Greek and Roman world was not marriage like we have it now. In fact, I’d say that Athenian male same-sex relationships were a whole lot closer to the modern conception of marriage than the Athenian male-female marriage.
My point is that there’s no use in trying to claim that you’re defending a definition of marriage that has been around for thousands of years. You’re not. Marriage is a fluid concept.
As to your last question: first, I thought you were pro-gay rights? It sounds to me like - and I could be wrong - that question deals more with whether or not homosexuality should be accepted at all than same-sex marriage. Second, I’m not sure what you mean. There’s a lot of acceptance now, so I think it has ‘made it’, in your terms. In more historical terms, the question is absurd. What do you think about the fact that democracy disappeared for over a thousand years? Does that make it a less valid system of government?
Obviously, it’s a tautology that homosexuality is not heterosexuality. However, both are normal. Homosexuality does not deviate from the norm. For gay people, it IS the norm. Thus, saying that homosexuality deviates from the norm is privileging heterosexuality as “more normal” and that is a judgmental statement, and inaccurate.
I think that Western Judeo-Christian societies overwhelmed and/or infiltrated other cultures and, by virtue of being the dominant worldwide culture, imposed their hetero-normative bigotry on other societies. That does not mean that homosexual marriages were bad for those societies, or they didn’t work, and that’s why they went away. You’re assuming that gay marriage in other cultures disappeared because something was inherently wrong with it, and I think you’d be hard pressed to prove that. Rather, the view that there is only one right definition of marriage was imposed from outside by another culture, causing all sorts of issues, including the suppression of sanctioned homosexuality.
In nature, there is a whole lot of homosexuality, all over the place, all the time. And guess what? The other animals don’t care. They mind their own business because it doesn’t affect their reproduction in any way. Perhaps, in this instance, it would be better if humans emulated animals in their eminently practical and egalitarian attitude towards homosexuality.
I seem to recall in an answer to a post of mine your claim that one of the possible downsides of a society wherein same-sex marriage had been part of the marriage tradition in the U.S. from the start was that children would find their own understandings of sexuality confused. Yet here you appear to be accepting of the use of particular words even if children find themselves confused by their use. Surely it is only one or the other?
Because simply being wonderful or unspectacular is no guarantee that people will recognise it as such. Look at this very debate; the very existence of it shows that people have very different ideas on what gay marriage would result in. You’re assuming that people come into a situation with an entirely neutral frame of mind, come to fully understand the situation, and thus come to the reasonable, correct conclusion. If that were so, we wouldn’t need to argue about this subject at all; we’d already know what would happen, and be in accord. Add to that that for some the metric for success may not be the greatness (or lack of) of the marriages themselves - such as yourself, for example - and the simple point that, while I wouldn’t accuse you of being among them, there are many people who are bigoted to the extent that no evidence will convince them.
The right to have an abortion seems to be favoured by a majority at the moment. Many seem to feel that right is wonderful to have. Good thing there’s no campaigns against it, right?
Well, while you’re up there… Helen, Helen, let down your hair!
You make an absolutely fair point here, particularly because it is such a long thread. It was not meant to be rude, coy, or disrespectful to Poly, and I apologize if it came off that way. But I really am unable to sit for very long and I was trying to be efficient time-wise. Though I should have been more helpful. For now, given my same constraints, I will say that a reading of my posts on page 9 should explain my position. That may be a lazy way to do it, and I apologize for that, but this Vicadin isn’t as strong as I had hoped and it wold take some time to copy, paste, and edit the relevant posts from that page.
Now, back to the bed and being horizontal.
I’m sorry, but I simply don’t believe you. That’s not what you’ve been arguing for in this thread, and it’s not what you voted for on election day. I’m not accusing you of lying, it’s just that your words and your actions do not match up.
I agree, heterosexuality and homosexuality are different, just as men and women are different. Can you point to any area of the law which has been segregated so that there is one body of law that deals with men, and one body of law that deals with women? If not, why do you think such a separation is necessary for gays and straights?
Why are you asking me? I’m not the one in this thread who voted to strip away rights willy nilly. You are. You tell me why you did it.
Well, I have been waiting by the phone for eight years for President Bush to call me with an offer for the Supreme Court.
Perhaps President Obama will come through…
Well, sir, today’s your lucky day. Mr. Bush, finding himself with an unexpected vacancy, cast about, found you: Conservative Republican from Northern Virginia, of Hispanic descent, devout Catholic, against abortion, for gay marriage, almost extremist in favoring judicial self-restraint, opposed to substantive due process… you were just tailor-made to get his nomination and consent from the present Senate. You’re the perfect mix to please both sides, the ideal compromise nomination. (This is only partly tongue in cheek.)
And, in this hypothetical dream world, it’s early 2009. And an appeal has just made its way up the chain: Equality California vs. Schwarzenegger, alleging that the new Section 7.5 of the California State Constitution, recently adopted by Proposition 8 in the November election, violates the Equal Protection and Due Process clauses of the Fourteenth Amendment, the former by denying the right to marry on the basis of sex and of sexual orientation, the latter by voiding previously legal same-sex marriages. The eight justices senior to you are split four-four. Mr. Roberts motions Mr. Stevens over, they confer in whispers, then he turns to you. You’re the deciding vote, so they’ve agreed you’ll be assigned to draft the majority opinion, since whichever way you go will become the law of the land, with a five-justice or more majority.
Now, write it. 
Subsequent to a ruling by the California Supreme Court construing the State Constitution as forbidding any restrictions on marriage solely to opposite-sex couples, California voters adopted by statewide referendum "Proposition 8.” This action amended the State Constitution’s Article I by adding a Section 7.5 to require the state to recognize as valid marriage only “between a man and a woman.” Respondents, who include aggrieved homosexuals and municipalities, commenced this litigation in federal court against petitioner state parties to declare Section 7.5 invalid and enjoin its enforcement. The trial court held that Section 7.5 was violative of the Due Process and Equal Protection clauses of the Fourteenth Amendment. The Court of Appeals affirmed in part and reversed in part, finding that reliance on the Due Process clause was inapposite, but that Section 7.5 was subject to strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment because it infringed the fundamental right of gays and lesbians to marry. We granted certiorari limited to the following question: Does the Equal Protection Clause protect the rights of people to enter into a marriage with a member of the same sex?
Held:
Sec. 7.5 violates the Equal Protection Clause.
(a) In order to reconcile the Fourteenth Amendment’s promise that no person shall be denied equal protection with the practical reality that most legislation classifies for one purpose or another, the Court has stated that it will uphold a law that neither burdens a fundamental right nor targets a suspect class so long as the legislative classification bears a rational relation to some independent and legitimate legislative end. See, e.g., Heller v. Doe, 509 U.S. 312.
(b) Sex-based classifications, in which gender is the primary discriminating factor between the classes, requires “exceedingly persuasive justification.” See Mississippi University for Women v. Hogan, 458 U.S. 718.
(c) There is no principled reason to apply this standard to gender-based classifications and simultaneously withhold it from a classification based on sexual preference. “Archaic and overbroad generalizations,” and “increasingly outdated misconceptions” (Craig v. Boren, 429 US 190) cannot serve as the basis for state statutory schemes when those schemes are predicated entirely on sexual preference. To the extent that Baker v. Nelson is in conflict with this decision, it is hereby overruled.
(d) Sexual preference is a classification entitled to “intermediate scrutiny,” Craig v. Boren.
(e) Assuming without deciding that Sec. 7.5 would survive rational basis review, it nonetheless fails to advance an “exceedingly persuasive justification” in support of “important governmental interests” by “substantially related means.”
Scalia, dissenting (joined by Alito):
This is bullshit, y’all. I told you what would happen if we overruled Bowers!
Yes, well…
…he has a point.
Here’s the problem, though. Although it may be true that “it’s a foolish man that builds his house upon the sand,” once built, it’s pretty expensive to tear down that house and start over.
My decision in Poly’s hypothetical comes from respecting the existing precedents in law. I don’t think you can have a principled basis for deciding Lawrence and Romer one way and then deciding this question another way. Lawrence was wrong, and Romer was wrong. But they are good law, and more to the point, people rely upon them: lower courts and the public use the reasoning of those cases to make decisions and conduct their lives. Stare decisis exists primarily because the law should produce predictable results; it shouldn’t depend on a crapshoot of which judges you get and what their political opinions are.
That’s why it’s best to solve these problems at the legislature, and if I had written the full opinion instead of the headnotes, surely you would have seen a paragraph or two espousing that course. But while I feel in general that the best way to curb judicial excess is to start saying, “No more!” that general principle cannot apply here, where the question follows directly the reasoning from previous rulings.
So this is why I’d be a controversial judge. I would have scuttled Lawrence and kept Bowers alive. But since that time has past, I acted here in accord with the previously settled law of the land.
Thanks for responding. Anyhow, I think there’s at least one very important impact your position has, other than the goods/harms you’re already weighing, and it’s one which is very well illustrated in this very thread: no matter what your intent, what people see in your position is that you want to make gays second class citizens. No matter how pure your intentions, no matter how carefully you explain your (to my ears bizarre) position, more or less everyone in this thread thinks that you value gays less. And that’s exactly the message that people would read into the laws you propose. If straights have “marriage” and gays have legally-identical “civil unions”, and everyone knows that “marriage” is the one that came first and has all the tradition associated with it, and part of your argument is something that’s at least superficially similar to “well, we don’t want to sully the meaning of the word marriage”; how could people possibly NOT get the message that gay people are less important, less worthy, less deserving, less a fundamental part of society?
And when people get that message, that leads to discrimination and hatred and a variety of bad things. So weigh that into your deliberations.
Well, yes, but then I’d be only applying to one gender. But that’s what I was thinking of.
Uhh, I don’t see what your point is. Here’s how it works now:
-adoptive parents and biological parents both use the word “mother”, both in general use and to the children
-at some point the children get old enough to realize “hey, I’m black and my mother is white… but everyone else I know is the same color as their mother”
-Then you explain the difference between a biological mother and an adoptive mother, laying on the “and we wanted a child so much but couldn’t have one grow in mommy’s tummy, so all this extra love piled up, and now we found you, and we love you just as much as any other mother and father” thick, and so forth.
So why would that be different for gay marriage?
-you call everything a marriage
-when the kid gets old enough to ask why most marriages are between a man and a woman but some are between two men and two women you say “well, the most important part of marriage is the love. And while most men love women and most women love men, some men love men and some women love women, and people should marry who they love”.
?
Bricker: Thanks! Love the decision; love the headnotes format.
And, much though I disagree from a constitutional law standpoint, I understand why the jurisprudential philosophy you adhere to would find Lawrence bad law. But that raises two linked questions to me, and if we can do it without screams of outrage, I’d like to see your analysis of the answer, [Note to the community at large: As Bricker has pointed out a bunch of times, “constitutional” does not equal “fair” or “equitable” – if 50 or so “faithless electors” vote for McCain next month even though they were elected and pledged to vote for Obama, McCain would be the duly legally elected President of the United States. Wouldn’t make it right, wouldn’t make it fair, but it would be constitutional. (And probably result in abolition of the Electoral College… but that’s off my point). I’m asking **Bricker to elaborate on why he views an issue of law the way he does. He and I have both made it clear we favor gay marriage. His explanation is going to relate to philosophy of constitutional interpretation, not to what’s fair or right in a broader sense. So avoid flaming either of us, please.]
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You said, “Lawrence was wrong, and Romer was wrong.” I grasp why you feel Kennedy was wrong in his Lawrence decision, but I frankly don’t get your point on Romer. Amendment II was a law designed to deny a minority group access to the courts; if anything law-wise violated Equal Protection in the broadest sense possible, that would be the leading example, in my mind. Please explain why you felt it was decided wrongly.
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Given your views, what is the proper remedy when a given person or group believes its constitutionally guaranteed rights to have been violated, if not to seek redress through th courts? Repeal or amend the law, certainly; I get that. But does “presumption of Constitutionality” in your mind extend to the limit of “any law, no matter how arrantly it flies in the face of the Constitution, or in some people’s understanding of the language of the Constitution, must be regarded as sacrosanct until or unless changed by vote of the people or their elected representatives”? Essentially, no judicial review? That can’t be what you’re saying. And yet it seems to the the inference from the propositions you advance. I suspect I’m missing a very strong nuance there, and need to have it spelled out.
Thanks for answers.
Romer was wrong because it failed to correctly apply the rational basis test. It’s been characterized as “rational basis with teeth,” and that phrase outlines my problem with it; it exemplifies the worst aspects of compromise. Reluctant to characterize gays as a protected class requiring intermediate or strict scrutiny, but obviously even more reluctant to let Amendment 2 stand, Kennedy chose to imbue his rational basis argument with a bit more scrutiny than had been gioven the test previously,… without ever acknowledging that this is what he was doing, because he was obviously also reluctant to create a fourth level of judicial scrutiny.
I have no problem with judicial review. If Congress were to pass a law saying, “The United States hereby establishes that the Christian religion is the national faith,” then the court system is the remedy; that law flies squarely in the face of the text of the First Amendment.
But it gets back to my quote from the book of Matthew earlier – when the decisions in reviewing the law are no longer based on the text of the Constitution, but on some supposed obvious consequence of that text, we set ourselves upon the sand. At that point, it’s relatively firm sand. When later decisions build upon that foundation, using the first ad-hoc assumption to justify two more, then our structure upon the sand grows, and the stability begins to shift a bit. And the farther we drift away from the text, the less justification the judiciary has for their pronouncements…and the shiftier our house upon the sand becomes.
So there’s not a “bright-line” rule, but the overriding principle should be judicial restraint. Judges should ask simply, “What does the law say?” and not “Is this result the best social policy?” Most especially, judges should not see themselves as architects of social policy. They should apply the analytical framework honestly regardless of the results, and leave to the legislature to fix any poor results that ensue.
This is important precisely because of what I said above: the law must yield predictable results. If judges can disregard the printed law in favor of their own sense of compassion, fairness, or social order, then we practically guarantee a lack of predictability, since not all judges will share the same view of what constitutes compassion, fairness, or social order in a given instance.
And all of this is important because it goes to the heart of what we as Americans profess to believe in: we govern ourselves. WE are sovereign; we do not surrender our sovereignty to unelected judges. But ceding to judges such sweeping power is to do exactly that: surrender, in some small measure each time, our ability to govern ourselves.